ABDUL KHALIQ---Appellant Versus HAQ NAWAZ---
Respondent
Citation: 2018 PLD 729
Result: Appeal Accepted
Court: Supreme Court of Pakistan
Date of Decision:
Judges:
Case Number:
ORDER
EJAZ AFZAL KHAN, J.--This appeal with the leave of the Court
has arisen out of the judgment dated 30.3.2016 of the Lahore High
Court whereby the learned Single Judge in its Chambers allowed the
revision petition filed by the respondent and set aside the orders of the
fora below.
2. Points raised and noted at the time of grant of leave read as
under:-
"Contends, inter alia, that when the petitioner deposited entire
amount of court fee to the tune of Rs.15,000/- a deficiency of a
sum of Rs.13/-(sic) occurring due to non-cancellation of stamps
could not be stretched to unworkable extremes so as to deprive
the petitioner of fruit of the decree he earned after facing rigors
of 15 year's litigation, and that such default could not be blown
out of proportion when it was not contumacious by any attribute
and the court passing such judgment on receipt of the required
stamps drew the decree accordingly. Points raised consideration,
we, therefore, grant leave in this petition. As this matter has
been lingering since 2001 it would be appreciated if it is listed
within three monlhs."
3. Learned ASC appearing on behalf of the appellant reiterated the
argument addressed at the time of arguing petition for leave to appeal
with the addition that it would be unjust to undo the decree on account
of failure of the appellant to deposit stamps of a paltry sum within the
time fixed therefor.
4. Learned ASC appearing on behalf of the respondent contended
that once the trial Court passed the decree, it became functus officio,
therefore, it could not receive stamps nor could it extend time; that the
proper course for the appellant was to file an appeal before the next
higher forum but his failure to do so, blessed the decree with finality;
that in the absence of any order of the appellate forum, suit of the
appellant, as observed by the learned trial Court, in the concluding part
of its judgment, was to be dismissed. The learned ASC to support his
contention placed reliance on the cases of Muhammad Wahid and
another v. Nasrullah and another (2016 SCMR 179) and Shah Wali v.
Ghulam Din alias Gaman and another (PLD 1966 SC 983).
5. We have gone through the record carefully and considered the
submissions of the learned ASCs for the parties.
6. The facts recounted at the bar by the learned ASC for the
appellant have not been disputed as far as the deposit of entire stamps
of Court fee and failure to cancel the stamps of Rs.13/-(sic) are
concerned. We agree with the argument of learned ASC for the
respondent addressed on the strength of the judgment rendered in the
case of Muhammad Wahid and another v.. Nasrullah and another
(supra) that the Trial Court having passed the decree became functus
officio and as such could not pass an order, nor has it passed any,
extending the time. What, however, stands out from the record is that
the Trial Court while announcing the judgment on 19.11.2009 did not
direct the appellant to make up the deficiency in Court fee within a
fortnight. Otherwise, the person who affixed the Court fee of Rs.15000/-
with the plaint would not have delayed or demurred in making up the
deficiency of Rs.130/-(sic). The fact that the appellant having been
informed by the Reader of the Trial Court on 22.12.1998 made up the
deficiency on the same date, further proves that the was not directed
to make up the deficiency at the time of announcement of the
judgment. Assuming he was directed to make up the deficiency at the
time of announcing the judgment, his failure to make up the deficiency
of such a paltry sum could not deprive him of his substantive right
because the Court Fee Act being a fiscal statute has been enacted to
collect revenue for State. It has not been enacted to arm a litigant with
a weapon of technicality against his opponent. Therefore, neither the
Court of law nor a litigant could use this law as a noose to strangulate a
right which otherwise stands established. When seen in this
perspective the failure to make up the deficiency of a paltry sum could
not warrant the dismissal of the entire but a fraction of the suit, in
proportion to the amount of the Court fee not made up. Its dismissal in
proportion to the amount of Court fee actually paid is coram non judice
because the learned Trial Court has no jurisdiction to dismiss the entire
suit. The decree granted to the appellant could still be executed in
proportion to the amount of the Court fee actually paid. Reference
could be made to the cases of Firm Nihal Chand Atma Ram. v.
Sardari_Mal (AIR 1926 Lahore 558), Amir Shah Muhammad v. Syed
Shah Muhammad (AIR 1931 Lahore 237) and Ahmed Bakhsh and
others v. Khurshid Akbar Khan,_etc (PLD 1988 SC 707). Having thus
considered, the view taken by the High Court does not appear to be
correct nor does it conform to the aim and object of the Act. The
judgment rendered in the case of Shah Wali v. Ghulam Din alias Gaman
and another (supra) being distinguishable on facts is not applicable to
the case in hand. We, therefore, do not feel persuaded to maintain the
impugned judgment.
7. For the reasons discussed above, we allow this appeal, modify
the impugned judgment as mentioned above.
